The Storm Over Women's Health Care Had Been Brewing

In the battle between state leaders and the Obama administration over Texas’ decision to oust health care providers affiliated with abortion clinics from a five-year-old contraception and cancer-screening program, both sides believe they are the victims.

The Obama administration says Texas is violating federal law by limiting where poor women can seek health care, and it announced last week that it was cutting off financing for the Texas Medicaid Women’s Health Program, which does not pay for abortions and received $9 in federal financing for every $1 the state contributed.

Republican elected officials, who are seeking tens of millions of dollars in the state budget to continue the program without federal help and without Planned Parenthood clinics — the focus of the state’s ire — interpret the law another way. They say it grants states the authority to decide which health providers are qualified to participate, and they are suing the federal government, claiming that its action is unconstitutional.

Despite the high emotions, the strategic media campaigns and the moral outrage of the last few weeks, neither side was blindsided by this fight. The seeds of discontent were planted years ago.

The origins of the Women’s Health Program can be traced to 1999, when family-planning advocates began asking lawmakers to include $40 million in the state health budget to finance contraception and well-woman exams for poor women. Despite an orchestrated push, the efforts were unsuccessful.

Two years later, state Rep. Garnet Coleman, D-Houston, and state Sen. Judith Zaffirini, D-Laredo, in conjunction with Republican lawmakers, inserted language into a comprehensive Medicaid reform bill directing state health officials to team with the federal government to start the health program. The use of Medicaid dollars for abortions — except in cases involving rape, incest or when a mother’s life was in danger — was already banned. The idea behind Texas’ program, Coleman said, was to save money for Medicaid “by expanding family-planning services to women who might get pregnant.”

Gov. Rick Perry vetoed that measure — but not, his staff said, because he was opposed to the program. In the 2001 veto statement, the governor said he was concerned about running such pilot programs when the state was trying to reorganize Medicaid.

During the 2005 legislative session, when a more conservative Legislature increased financing for crisis pregnancy centers and passed a law requiring parental consent for minors seeking abortions, another bipartisan effort finally succeeded. But it was not without compromise. Republican lawmakers feared that any public money going to a Planned Parenthood clinic for family planning helped keep the entire abortion-rights umbrella organization afloat. State Sen. John Carona, R-Dallas, joined Vilma Luna, then a Democratic representative of Corpus Christi, to push through the Women’s Health Program. It passed largely because of a Senate amendment banning abortion providers and clinics affiliated with them from participating. Perry signed it into law.

“We knew it was going to head in that direction when we worked the bill up, and the greater goal was to pass the bill so we could fund those services,” said Luna, now a lobbyist in Austin. “Otherwise, I’m certain it wouldn’t have passed.”

With the law in place, the state then got the federal financing for the five-year program. But when state health officials started enrolling providers, they did not follow the “abortion affiliates” rule. They allowed Planned Parenthood clinics that did not perform abortions — clinics that have argued that their business structures are completely separate from Planned Parenthood clinics that perform abortions — to participate, fearing they could face lawsuits over the rule’s constitutionality.

Over the next five years, Planned Parenthood’s family-planning clinics became the largest beneficiary of reimbursements under the Women’s Health Program and provided care for nearly 46 percent of the program’s 106,711 patients who received services in 2010. A total of 130,000 women are enrolled in the program. By 2011, the Texas Health and Human Services Commission reported that the program had prevented thousands of unintended pregnancies and saved the state tens of millions of dollars in Medicaid-financed births.

But abortion foes remained bothered by Planned Parenthood’s involvement, and state health officials’ seeming unwillingness to enforce the Legislature’s intent. In late 2010, state Sen.Robert Deuell, R-Greenville, asked Republican Attorney General Greg Abbott to rule whether it would be constitutional for the state to exclude clinics affiliated with abortion providers.

A few months later, Abbott released his opinion, saying the state rule was “not pre-empted by federal law.” That gave the go-ahead for state health officials to define “affiliate” the way Republican lawmakers instructed — and to remove Planned Parenthood from the program.

"Planned Parenthood “had five years’ notice they needed to stop, to either quit doing the program or totally separate their operations or quit doing abortions,” Deuell said. “It was time to enforce the rule.”

During the 2011 legislative session, amid budget cuts that slashed other pools of family planning financing, the Women’s Health Program was spared. But with the program up for renewal at the end of that year, state health officials made clear their intent to exclude Planned Parenthood clinics, and the federal government balked.

The Obama administration, which is phasing out the more than $30 million the federal government spends on the Texas program each year, said the Social Security Act prevents states from restricting Medicaid patients’ choice of qualified health care providers.

Cindy Mann, the deputy administrator of the Centers for Medicare and Medicaid Services, said last week that there are a couple of exceptions to this rule, but “federal law is clear that women should be able to choose their family-planning providers.”

But state leaders say the exact language of the Social Security Act protects “qualified” health care providers — and that they, not the Obama administration, ought to determine who fits that bill. It is a states’ rights battle, they argue: because of laws the Legislature has passed that ban “affiliates” of abortion providers from participating in the Women’s Health Program, Planned Parenthood is unqualified.

“States have always been able to determine who’s a qualified provider,” said Katherine Yoder, Perry’s adviser for health and human services. “If a provider commits Medicaid fraud, you’re no longer a qualified provider. If you are a tax cheat, you’re not a qualified provider. Legislators from the very start of this program have said that abortion providers and affiliates —Planned Parenthood — are not qualified providers.”

Planned Parenthood leaders argue that state health officials have treated them as qualified for years and that they have given them no reason for doubt. Their clinics have separated their services so that “no money is even accidentally used for abortions,” said Kelly Hart, the Dallas-based spokeswoman for Planned Parenthood of North Texas. The program’s reimbursements are based on receipts clinics submit after performing preventive services, she said; they do not receive blanket financing.

“Those legislators who don’t like Planned Parenthood have made it very plain that they will be relentless in their attempts to shut Planned Parenthood down,” Hart said. “They don’t care who else they hurt in their vendetta against us.”